This post should have gone up yesterday, but I wanted to read and contemplate the U.S. Supreme Court’s decision in U.S. vs. Comstock. What with shopping and cooking and writing the ode to shad, there wasn’t really time.

I was fascinated to learn that the decision came down as a 7-2. Everyone but Thomas and Scalia decided that Congress has the power to order civil commitment of a convicted sex offender who is also mentally ill and is completing a federal prison sentence. There was no debate that the handful of people involved have chronic problems from which they have not been rehabilitated in prison (quelle surprise!). The issue does not arise often since most sex offenders are convicted in state courts. The feds become involved when these guys (all male) violate mail fraud statutes and whatnot. Major ick factors involved, in other words.

The folks challenging the federal statute claim that it violates the Tenth Amendment, which has always been interpreted to limit federal power and reserve all unspecified rights to the states or the people. In other words the states can commit these folks but the feds can’t. Justice Stephen Breyer wrote that the statute falls into an exception to the Tenth Amendment because it is part of the “implementation authority” granted by the Necessary and Proper Clause. That clause says that if the constitution grants Congress a power, it has all attendant powers “necessary and proper” to implement the law. The challengers said the statute went way beyond that limit. No, said Justice Breyer, it might be a step or two removed but still necessary and proper.

As soon as I read about it yesterday a little bell went off in my head and I harkened back to a law school class – not necessarily a good thing, but in this case not so bad. Here’s what Justice William O. Douglas had to say in Griswold vs. Connecticut, which invalidated Connecticut’s statute banning the dissemination of birth control to anyone, including married people: Having surveyed a series of cases on the question of freedom of association, Justice Douglas wrote: “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Those guarantees, he said, create “zones of privacy.” Emanations? Penumbras? On the plus side, please note the blessed brevity of the opinions, especially Justice Potter Stewart’s dissent.

While Justice Breyer was careful to point to the very limited extension of federal power in  Comstock, it still looks as though the court has wandered off into at least the edge of a penumbra. I do find it odd that all but the most conservative justices agree with “penumbras” when it comes to the power of the federal government,   Pundits seem to agree that this decision is a proxy for how the court will rule on state challenges to health-care reform. If so it bodes well for the efforts to change an impossible system.


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